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embrace the views expressed by Professors John O. McGinnis, Jeremy Rabkin, and Michael D. Ramsey

at that hearing. These witnesses carefully distinguished between proper and improper uses of foreign

legal materials by American courts. They explained that consideration of the views and experiences of

foreign jurisdictions is entirely appropriate in the formulation of moral and social policy, but that it is the

function of Congress and state legislatures, not the courts, to make moral and social policy. They also

discussed why a principled use of foreign legal materials would likely lead to a substantial reduction of

rights in the United States, whereas an unprincipled use would merely provide cover for the Justices to

implement their own policy preferences. Either way, they explained, reliance on foreign legal opinions

would undermine the proper American understanding of what is fundamentally distinctive about our

constitutional framework.

The transcript of last year's hearing suggests that some took solace in the understanding that the

Court's use of foreign law was incidental at worst. Unfortunately, two developments since last year's

hearing refute that understanding. These developments demonstrate that the threat posed by the Court's

use of foreign law is real and growing. Rather than reiterate the points powerfully made by Professors

McGinnis, Rabkin, and Ramsey, I will focus my written testimony on these developments and what they

signify and portend.

As I will discuss, in its March 1, 2005, ruling in Roper v. Simmons, a five-Justice majority of the

Supreme Court explained at length its view that the overwhelming weight of international opinion

against the juvenile death penalty” provided “respected and significant confirmation" for its ruling that

execution of offenders who were 17 at the time of their offense violates the Eighth Amendment's

protection against “cruel and unusual punishment." And a sixth Justice, although in dissent, approv


the majority's resort to foreign legal materials. Moreover, although the majority argued that there was

precedent in the Eighth Amendment context for regarding foreign and international authorities as

"instructive," there is nothing in the majority's approach that would limit use of these materials to this

context. Indeed, in recent months, at least two Justices in the Roper majority have, in public

appearances, attempted to offer their own justifications for freewheeling resort to foreign authorities on

a broad range of constitutional questions. The striking feebleness of their justifications provides ample

testament to the illegitimacy of their enterprise.

House Resolution 97 is a fit and proper step in response to the Supreme Court's improper

reliance on foreign law. The members of the House of Representatives have the right and duty to

uphold the Constitution and to encourage the Supreme Court to construe the Constitution properly. By

making clear that judicial interpretations of the Constitution “should not be based in whole or in part on

judgments, laws, or pronouncements of foreign institutions unless such foreign judgments, laws, or

pronouncements inform an understanding of the original meaning of the Constitution,” House

Resolution 97 would be a faithful exercise of that right and duty.

1. Roper v. Simmons

The most significant development since this subcommittee's March 2004 hearing is the Supreme

Court's March 1, 2005, ruling in Roper v. Simmons. In that case, a five-Justice majority overturned the

Court's 1989 ruling in Stanford v. Kentucky, 492 U.S. 361 (1989) and ruled that the Eighth

Amendment's bar on “cruel and unusual punishments” prohibits the execution of a brutal murderer who

was 17 years old at the time of his crime.

a. Facts

The facts of Roper warrant special attention, as they starkly illustrate how dismissive Justice

Kennedy's majority opinion is of the constitutional power of the people to decide through their state

representatives what laws ought to govern their own states. My summary and my specific quotations are

drawn entirely from Justice Kennedy's majority opinion.

When he was 17, Christopher Simmons planned, instigated, and committed a brutal murder.

“Before its commission Simmons said he wanted to murder someone. In chilling, callous terms he

talked about his plan, discussing it for the most part with two friends .... Simmons proposed to commit burglary and murder by breaking and entering, tying up a victim, and throwing the victim off a bridge.

Simmons assured his friends they could get away with it' because they were minors."

In the middle of the night, Simmons and a friend “entered the home of the victim, Shirley Crook,

after reaching through an open window and unlocking the back door. Simmons turned on a hallway

light. Awakened, Mrs. Crook called out, 'Who's there?' In response Simmons entered Mrs. Crook's

bedroom, where he recognized her from a previous car accident involving them both. Simmons later

admitted this confirmed his resolve to murder her."

“Using duct tape to cover her eyes and mouth and bind her hands, the two perpetrators put Mrs.

Crook in het minivan and drove to a state park. They reinforced the bindings, covered her head with a

towel, and walked her to a railroad trestle spanning the Meramec River. There they tied her hands and

feet together with electrical wire, wrapped her whole face in duct tape and threw her from the bridge,

drowning her in the waters below."

"By the afternoon of September 9, Steven Crook had returned home from an overnight trip,

found his bedroom in disarray, and reported his wife missing. On the same afternoon fishermen

recovered the victim's body from the river. Simmons, meanwhile, was bragging about the killing, telling

friends he had killed a woman 'because the bitch seen my face."

Arrested the following day, Simmons confessed to the murder and performed a videotaped

reenactment at the crime scene.

At trial, Simmons did not call any witnesses in his defense in the guilt phase. At the penalty

phase, the trial judge instructed the jurors that they could consider Simmons' age as a mitigating factor,

and Simmons' counsel argued that Simmons' age mitigated his responsibility and should make a “huge

difference to the jurors. The jury recommended, and the trial judge imposed, the death penalty.

b. The Majority Ruling

Justice Kennedy's majority opinion, which was joined by Justices Stevens, Souter, Ginsburg, and

Breyer, set for itself the task of ascertaining whether execution of an offender who was 16 or 17 years

old at the time of his capital crime measured up to the evolving standards of decency that mark the

progress of a maturing society.” Kennedy's determination proceeds in three parts.

First, Kennedy undertakes to engage in a review of objective indicia of consensus, as expressed

in particular by the enactments of legislatures that have addressed the question.” Kennedy looks to the

12 states that have no death penalty and the 18 states that, by express provision or judicial

interpretation, exclude juveniles from its reach” to conclude that a majority of states—30 in totalreject

the death penalty for 16- and 17-year-olds. This factor, together with the infrequent use of the death

penalty for 16- and 17-year-olds in those states that authorize it and the “consistency in the trend toward

abolition of the practice,” leads him to conclude that the “objective indicia” provide “sufficient

evidence” that “our society" views 16- and 17-year-olds as “categorically less culpable than the average

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Second, in an “exercise of our own independent judgment,” Kennedy then explains three

"general differences between juveniles under 18 and adults (that) demonstrate that juvenile offenders

cannot with reliability be classified among the worst offenders": (a) “[A]s any parent knows" and as

"scientific and sociological studies ... tend to confirm," the young more often have a “ack of maturity"

and "an underdeveloped sense of responsibility.” (b) “[J]uveniles are more vulnerable or susceptible to

negative influences and outside pressures, including peer pressure." (c) “[T]he character of an juvenile

is not as well formed as that of an adult." For these reasons, the “penological justifications for the death

penalty apply to (juveniles) with lesser force than to adults."

Third, and of most direct bearing on this hearing, Kennedy then finds “respected and significant

confirmation” for his conclusion that the Constitution bars the death penalty for juvenile offenders “in

the stark reality that the United States is the only country in the world that continues to give official

sanction to the juvenile death penalty." Notably, Kennedy finds that the fact that the United States,

alone with Somalia in the world, has not ratified Article 37 of the United Nations Convention on the

Rights of the Child, which contains an express prohibition on capital punishment for crimes committed

by juveniles under 18," supports his conclusion that the juvenile death penalty is unconstitutional.

Kennedy concludes his discussion with this assertion:

"It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that

the express affirmation of certain fundamental rights by other nations and peoples simply

underscores the centrality of those same rights within our own heritage of freedom."

c. O'Connor's dissent

In her dissent, Justice O'Connor opines that no “genuine national consensus” has developed on

whether capital punishment should be available for 17-year-old offenders. O'Connor, however, agrees

with the majority's proposition that "the existence of an international consensus ... can serve to confirm

the reasonableness of a consonant and genuine American consensus."

d. Scalia's dissent

Justice Scalia's devastating dissent (joined in full by Chief Justice Rehnquist and Justice

Thomas) cannot fairly be summarized in brief and should be read in full by anyone interested in this

case. But I will nonetheless attempt to highlight Scalia's core response to the majority's three major


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